Comparing Local OPLA Interim Guidance Requirements For Documenting Criminal Histories1 August 11, 2021 Recently, the 25 main field locations of the DHS Office of Principal Legal Advisor (OPLA) released guidance for requesting Prosecutorial Discretion (PD) to implement the department-wide memorandum2 issued by ICE Principal Legal Advisor John Trasviña (“Trasviña memo”), which provided interim guidance to OPLA attorneys about how and when to exercise prosecutorial discretion (“PD”) under DHS’ interim enforcement priorities. This comparison builds upon our recent practice alert, “Advocating for Clients in Removal Proceedings Using the OPLA Prosecutorial Discretion Memo,”3 and contains a brief overview of the variation in requirements for criminal history documentation, along with a chart containing each of the guidance provisions relating to criminal histories.4 NIPNLG reviewed copies of the guidance issued by all 25 of the main field offices, 23 of which were issued on OPLA 1 Released under a Creative Commons Attribution 4.0 International License (CC BY 4.0). This comparison was written by Katie McCoy and Cristina Velez of NIPNLG. The authors thank Sophia Gurulé and Ariel Mena of Bronx Defenders for their review and comments, and the immigration practice community, particularly NIPNLG members, for sharing local guidance materials. This comparison is intended for authorized legal counsel and is not a substitute for independent legal advice provided by legal counsel familiar with a client’s case. Counsel should independently confirm whether the relevant OPLA PD guidance has changed since the date of this publication. 2 See John D. Trasviña, Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities, May 27, 2021, available at https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf. 3 See National Immigration Project of the National Lawyers Guild (NIPNLG) and Immigrant Legal Resource Center (ILRC), Practice Alert: Advocating for Clients in Removal Proceedings Using the OPLA Prosecutorial Discretion Memo, June 21, 2021, available at https://www.nipnlg.org/PDFs/practitioners/practice_advisories/gen/2021_22Jun_opla-pd-memo.pdf 4 Note that in addition to the 25 main field offices, individual sub-offices have released additional guidance for the form and process of PD requests, and local stakeholder meeting notes may contain additional detail. NIPNLG restricted its comparison to the provisions of the main field location guidance relating to documentation of criminal histories required for making PD requests. 1 letterhead or in standard operating procedures, 1 set of instructions that was issued by the Dallas Field Office in the form of an email to practitioners, and 1 set of instructions that was shared during the AILA-OPLA Newark meeting on July 22, 2021. To some extent, all OPLA guidance requires either a sworn statement, comprehensive chart, or list documenting every arrest and conviction. Aside from this, the requirements are slightly different for each, with the exception of Atlanta, Baltimore, El Paso, and Phoenix. Some of the guidance requires the submission of background checks or clearance letters in addition to criminal records. Of note, Buffalo, Chicago, Denver, Miami, and San Antonio all state that noncitizens should “err on the side of full disclosure,” and some explicitly hint that if information regarding their criminal history is not affirmatively disclosed, their request could be denied. Only Detroit, Philadelphia, and Seattle OPLA guidance state that OPLA may request additional information or documentation before making a final determination. The local OPLA guidance instructions are grouped on an ascending scale of information and documentation required for a PD request. Below that is a chart providing the specific language of each OPLA office regarding criminal histories, whether it requires an additional background check, and whether it holds pro se requests to the same standards as represented noncitizens. For copies of the local OPLA guidance relied on for this comparison and additional questions, please contact Cristina Velez at [email protected]. Scale of Most Relaxed to Most Demanding Requirements Least demanding (suggesting, but not requiring, documents to include regarding arrests and convictions): 1. New Orleans makes no mention of specific criminal records or documentation required but only states that noncitizens must explain all aggravating factors thoroughly. The OPLA standard operating procedure (SOP) states that the ACC should review the criminal record as reflected in EARM or an updated FBI rapsheet. 2. Dallas only requires clients with criminal histories to include a timeline of arrests and convictions, along with any mitigating factors and evidence of rehabilitation, but does not require specific arrest and conviction records. 3. Boston and Minneapolis/St. Paul OPLA do not require specific documentation for convictions but recommend providing a comprehensive list of criminal history, along with arrest and conviction records. 4. Buffalo similarly does not require specific supporting documents but does require an affidavit setting forth all arrests and convictions. Attorneys are encouraged to “use their best judgment” when determining which documents to submit in support of the request. 2 5. Denver requires a comprehensive list of any criminal history with arrest and conviction documentation but does not require specific documentation. It does note that fully explaining all criminal arrests and convictions with supporting documentation is “in [the] client’s best interest.” 6. Orlando requires the submission of supporting documentation that includes a comprehensive list of any criminal history and documentation regarding all arrests, convictions, and “any other encounter with law enforcement,” but also does not specify the records to be submitted. 7. San Diego is unspecific as to documentation of arrests and convictions, but requires that noncitizens seeking discretion provide a “police clearance letter, CALDOJ report, FBI rap sheet or other similar documents to establish the lack of a criminal history.” Somewhere in the middle (arrest and conviction reports or a sworn statement listing all arrests and convictions and clearance letters): 1. Seattle requires a sworn declaration explaining whether the noncitizen has ever been arrested or convicted anywhere in the world, and if so, they must submit a chart documenting their complete criminal history. No specific records are required, but Seattle OPLA may request additional documentation when reviewing the request. 2. Miami requires, at a minimum, that noncitizens submit a sworn declaration stating whether they have ever been arrested or convicted anywhere in the world. But Miami also requires either a police clearance letter from each locality within the U.S. where the noncitizen has resided or “other reliable evidence” of the noncitizen’s entire criminal history. 3. San Antonio requires a sworn statement attesting to all arrests, detentions, expungements, or convictions anywhere in the world and all accompanying records. It does not state what specific documents must be included. Noncitizens must also submit a police clearance letter from a U.S. law enforcement agency. Most demanding (arrest records, police reports, conviction records and sworn statements requiring explanations): 1. Detroit requires arrest reports and conviction records for all arrests, charges, and convictions in the U.S. or abroad. 2. Newark PD requests must include a complete list of the noncitizen’s criminal history, with supporting documentation of all arrests, disposition of arrests, criminal charges, police reports, and any pending charges. 3. Washington, D.C. requires a comprehensive list of any arrests, convictions, or other criminal history, including an explanation of what occurred and documents showing the outcome of the case. If unavailable, the noncitizen must explain why. 4. San Francisco requires a sworn declaration explaining whether the noncitizen has been arrested or convicted and a comprehensive criminal history chart, listing the disposition of each arrest, if so. Police and probation reports are required, and the noncitizen must provide a background check from the California Department of Justice with their rap sheet if they have not been fingerprinted by DHS. 3 5. Honolulu requires a statement made under penalty of perjury addressing any arrests or convictions anywhere in the country and providing “all details” of any arrest or conviction. The guidance does not explain whether criminal records must must be submitted in conjunction with the statement. 6. Philadelphia requires a sworn statement addressing prior criminal history, explaining the underlying circumstances of the criminal conduct, how they complied with the court’s order, and any rehabilitation. No specific documentation of criminal records is required but it is encouraged. 7. New York doesn’t require the submission of police reports but does require noncitizens to submit a sworn statement explaining the circumstances surrounding each arrest or conviction. Noncitizens with no criminal history must provide a Certificate of Good Conduct from any city where they have resided while in the U.S. 8. Los Angeles requires not only all arrest records and conviction records but also a sworn statement from the noncitizen “providing details” around each arrest and/or conviction. An FBI background check or state criminal